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Court of Criminal Appeal 28 November 2014

DS v R

[2014] NSWCCA 267

Drugs
CRIMINAL APPEAL CONVICTION APPEAL SENTENCE APPEAL

Citation: DS v R [2014] NSWCCA 267
Court: Court of Criminal Appeal, NSW
Date: 28 November 2014
Judges: Bathurst CJ; Fullerton J; Davies J

Background

The appellant was one of several co-offenders charged in connection with the importation and distribution of a large commercial quantity of pseudoephedrine. Following a jury trial in the District Court, he was convicted on two counts: supplying a prohibited drug in a commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1983 (NSW) (Count 4), and attempting to possess a precursor intended for use in manufacturing a prohibited drug under s 24A(1) of the same Act (Count 5). The jury could not reach a verdict on a third count involving aiding and abetting the importation of a border controlled precursor under the Criminal Code Act 1995 (Cth).

The sentencing judge found that the appellant's role was to facilitate delivery of the container in which the drugs were concealed, supervise its unpacking, isolate the drug-containing boxes, and oversee their resealing. He was sentenced to 15 years 11 months and 1 week imprisonment on the supply count, with a 20-month concurrent sentence on the precursor count.

The appellant appealed both his conviction and his sentence. The appeal was heard alongside related appeals brought by several co-offenders arising from the same drug operation.

  • Whether convicting the appellant on both Count 4 (supply of a prohibited drug) and Count 5 (attempt to possess a precursor) produced a miscarriage of justice, on the basis that the elements of the supply count were wholly contained within the elements of the precursor count.
  • Whether the sentencing judge failed to take into account the substantial delay between the commission of the offence and the date of sentencing.
  • Whether the sentence breached the parity principle, given the sentences imposed on co-offenders.
  • Whether the sentence was manifestly excessive.

Decision

Conviction appeal. The Court dismissed the conviction appeal. The same issue had been argued by the co-offender Yousef Jidah, and the Court resolved it against the appellant for the reasons given in that related judgment (Yousef Jidah v R [2014] NSWCCA 270). The Court found that the two counts did not create an impermissible overlap requiring one conviction to be quashed.

Delay ground. The Court rejected the argument that the sentencing judge had failed to account for delay. Critically, the delay issue had not been raised before the sentencing judge at first instance, and no explanation was offered on appeal for that failure. The Court reiterated that a sentencing appeal is a review of the exercise of a discretionary judgment, not a fresh hearing of the plea in mitigation.

Parity. The Court upheld the parity ground. Comparing the appellant's sentence with those of co-offenders ES and Lachlan Wilson, the Court found that the differentials of seven months and three months respectively were insufficient to reflect the materially more senior roles and greater criminal culpability of those two co-offenders. The task was complicated by the fact that ES and Wilson faced different charges carrying different maximum penalties. Nevertheless, the Court concluded that the disparity was unjustified and that the sentence did not adequately distinguish the appellant's lesser role and culpability.

Resentencing. Having upheld the parity ground, the Court resentenced the appellant on Count 4 to 14 years and 6 months imprisonment, preserving the sentencing judge's finding of special circumstances. The Court noted that, absent the parity error, it would not have intervened on the basis of manifest excess alone.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • The sentence imposed in the District Court on 27 July 2012 on Count 4 quashed.
  • In lieu thereof, a sentence of 14 years and 6 months imposed, commencing 11 March 2011 and expiring 10 September 2025, comprising a non-parole period of 9 years and 6 months and an additional term of 5 years.
  • The appellant to become eligible for parole on 10 September 2020.

Key Takeaways

  • The Court of Criminal Appeal confirmed that convictions on a supply count and a precursor possession count arising from the same substance do not necessarily produce a miscarriage of justice, even where the substance is both a prohibited drug and a precursor. The precise elements analysis matters.
  • A sentencing ground based on failure to account for delay will face significant difficulty on appeal where the issue was never raised before the sentencing judge and no explanation is provided for that omission.
  • Sentencing appeals are reviews of a discretionary exercise, not rehearings of the plea in mitigation. New arguments that were available but not advanced below carry a high threshold before an appellate court will act on them.
  • Parity requires that differences in sentence between co-offenders reflect genuine differences in criminal culpability and role. Where a co-offender charged with a different and lower-maximum-penalty offence nonetheless played an objectively more serious role, the sentencing court must still ensure that disparity in sentence is not so marked as to create a justifiable sense of grievance.
  • Comparing sentences across different statutory offences with different maximum penalties and standard non-parole periods is inherently difficult. The Court acknowledged this complexity while still finding that the differentials in this case were insufficient to reflect the distinctions in culpability between the co-offenders.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1983 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1
- Criminal Code Act 1995 (Cth)

Cases
- Yousef Jidah v R [2014] NSWCCA 270
- Lachlan Wilson v R [2014] NSWCCA 266
- Ibrahim Jidah v R [2014] NSWCCA 269
- ES v R [2014] NSWCCA 268
- Pym v R [2014] NSWCCA 182
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460
- R v Todd [1982] 2 NSWLR 517
- Crystal Lee England v R [2009] NSWCCA 274
- Gill v R [2010] NSWCCA 236